Article 13: What are the next steps for the EU copyright directive?

It looks like the controversial EU copyright directive may be adopted after all.

The EU copyright reforms have had a long and somewhat troubled history. Fierce lobbying around both Articles 13 and 11 of the proposed EU directive has come from copyright holders such as musicians, with major tech firms and internet experts on the other side.

In July 2018, the debate was put on hold entirely after MEPs voted to reopen talks on the planned changes, following the initial parliamentary votes on them in June. After this, the EU parliament met again in September to work through the regulations once more.

Just last month, EU member states were set to negotiate around the directive, but resistance to the changes from several countries saw discussions totally break down.

EU copyright issues a long-standing discussion

There has also been plenty of opposition to the new rules from internet users, as well as some politicians, while many copyright organisations have been fiercely pushing to implement the changes.

Back in January, the European Council, which has representatives from all the member states, did not have enough votes to move forward on a so-called ‘compromise draft’.

Since then, France and Germany have been locked in negotiations over Article 13, specifically. France essentially wanted Article 13 to apply to all platforms, regardless of their size, while Germany was in favour of applying it to just the largest of tech firms.

The rule would basically require sites that host user-generated content such as Twitter and YouTube to be legally liable for copyrighted material that appears on their platforms. It has been colloquially labelled ‘the meme ban’.

Critics of Article 13 say it will call for expensive upload filtering systems to be put in place, which could cripple smaller websites. They have deemed the concept of using algorithms to distinguish between copyright infringement and legal works such as parody as unworkable, arguing that these digital systems are often prone to error and still in their infancy.

What have France and Germany decided?

Under the new agreement reached by Germany and France, firms with less than 5m unique monthly visitors, earning less than €10,000,000 a year, until they have been in business for three years, would be exempt from the requirement to install upload filters. While the two countries say these exemptions are enough, many critics say the criteria are too narrow.

The rules now also say that sites need to prove they have undertaken “best efforts” to obtain licences from copyright holders for anything its users may upload – such as stock photos.

Julia Reda, MEP, said: “In practice, all sites and apps where users may share content will likely be forced to accept any licence a right-holder offers them, no matter how bad the terms, and no matter whether they actually want that right-holder’s copyrighted material to be available on their platform, to avoid the massive legal risk of coming in conflict with Article 13.”

The negotiations to complete the introduction of the rules are back on, with pressure to reach an agreement over the next few days a major factor to ensure the law is passed in March or April. Reda said that the final plenary vote later this spring will be the crucial tipping point for these controversial new proposals. This table from CREATe provides a clear timeline of events around EU copyright reform.